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override

(1) A carve-out from oil and gas lease royalty payments,usually a gross dollar amount per barrel of oil or per cubic foot of gas without diminution for costs of extraction.The override may be payable to the broker on the deal,to the attorney,or to some person other than the lessor with the mineral rights.(2) A name given to a clause, in a real estate listing contract, that requires payment of a commission to the listing broker if a buyer introduced to the property by the broker purchases the property within a certain time period after the listing agreement expires.The clause is to protect the broker for sales activities at the very end of the listing period that do not come into fruition until later.It also serves to protect the broker from buyers who learn about the property from the broker, take the broker's time in securing additional information and property inspections,and then attempt to time their offers until after the listing expiration in the hopes the seller will accept a lower price because then the seller does not have to pay a commission from the sale proceeds.

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McLean Credit Union, (214) another decision overridden in the 1991 CRA, stands in sharp contrast to these shadow precedents.

By definition, the application of shadow precedents depends on a showing that a given factual scenario is, at least in some respects, relevantly similar to the overridden case (albeit at least arguably not addressed by the language of the override itself).

I propose two interrelated interpretive conventions that would achieve this objective: (1) a rebuttable presumption that Congress, in overriding a nonconstitutional judicial decision interpreting a statute, rejects the court's interpretation of the preexisting statutory language and thus that "fresh" statutory analysis is required; and (2) a rule that those aspects of the overridden precedent are no longer binding on lower courts.

The first aspect of the proposal--that courts should do "fresh" analysis of the statutory text that triggered the override with a rebuttable presumption that the court's prior interpretation is superseded--builds on the discussion of congressional drafting in the previous subpart that showed it often can be difficult for Congress to comprehensively address every potential application of an overridden precedent.

Thus, a helpful reform would simply be to characterize applications of an overridden precedent that are not explicitly addressed by the statutory override language as congressional "silence" rather than acquiescence.

A presumption against relying on overridden precedent would require courts to do "fresh" statutory analysis, not only of the language of the override but also of the preexisting statutory language.

If the overridden decision itself was a departure from relatively uniform prior judicial or agency interpretations of the statutory language, Congress might reasonably be understood as intending to return to such earlier interpretations.

Second, I propose that enactment of an override should be interpreted as sufficient to supersede relevant aspects of the overridden precedent such that it is no longer binding authority on lower courts.

Shadow precedents and the separation of powers: statutory interpretation of congressional overrides